In Part 11 of this article, Jack Thorne introduced the risks posed to sports clubs by initiation ceremonies, and considered the potential tortious liability of clubs where a player suffers physical or mental injury as a result of an initiation ritual. In Part 2, Jack and Andrew Peters turn their attention to consider the most common employment claims that could arise as a result of initiation ceremonies, the reputational and commercial damage that clubs could suffer, and how clubs can guard against such risks.

INTRODUCTION TO EMPLOYMENT CLAIMS

Initiations ceremonies that destroy the relationship of trust and confidence between an employee and his employer2 or which involve a statutorily protected characteristic (see later) may, in addition to tortious claims, also result in employment claims being brought by the player against the perpetrator(s) and/or the club.

Where are claims usually heard?

The standard form employment contracts required by sports leagues and sports governing bodies commonly provide for employment related claims to be resolved through arbitration, though there is usually no absolute obligation on the parties to do so.3

Where arbitration is not sought, the individual could opt to bring his claim in the Employment Tribunal or, for certain claims such as wrongful dismissal, the High Court.

The principles set out in this part apply equally to claims before an arbitral tribunal applying English law or claims before the Employment Tribunal. References to “Tribunal” shall therefore refer to both an arbitral tribunal and the Employment Tribunal unless specifically stated otherwise.

What types of claims usually arise?

The most common claims that could arise under English law are as follows:

Direct discrimination, indirect discrimination and harassment (sexual or otherwise) under the Equality Act 2010; and

The Equality Act 2010 (the “Act”)5 sets out the legal framework for equality, diversity and discrimination in England.

Heads of Claim

It identifies a number of “protected characteristics”6 which could render an act unlawful discrimination or harassment. These characteristics include age, race, religion or belief, disability, sex and sexual orientation.

The Act sets out a number of heads of claim, including:

Direct discrimination – where an individual is treated less favourably than another because of a protected characteristic.7 An example here would be a practice of only subjecting foreign players to an initiation (or a particular part of it) and not their British counterparts.

Indirect discrimination – where a practice applies equally to people holding different protected characteristics but particularly disadvantages members of a protected characteristic compared to others.8 This might include, for example, a requirement to eat a particular food or consume an alcoholic drink, which would disproportionately disadvantage players of certain races or religions.

Harassment – where an individual is subjected to unwanted behaviour, connected to a protected characteristic, which has the purpose or effect (in other words, intention is unnecessary) of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.9 A person is sexually harassed, for example, if he is subjected to unwanted behaviour of a sexual nature that has the above effect.10 Though not an initiation ceremony, it was reported that Bayern Munich’s Frank Ribery, a practicing Muslim, was angered when Jerome Boateng sprayed him with champagne in the aftermath of their 2012/13 title victory.11 This is an example of an incident that could unwittingly amount to harassment under the Act.

The Act also protects a number of different categories12of workers including employees, contract workers, apprentices, some self-employed and office holders.

This means that, for example, a contract cleaner would be eligible to bring a claim against a football club for an initiation ceremony he deemed to be discriminatory, even if he were not directly a party to the ceremony himself.

The following is a non-exhaustive list of examples where discrimination/harassment issues could arise:

If only promoted youth team players are required to undergo an initiation, rather than newly acquired first team players;

If a player is required to sing a song by a homosexual music icon, even if the other players know that the individual is not actually homosexual;

If a player is required to perform a dance or a song which mocks his nationality or religion;

If the initiation requires newcomers to drink alcohol;

If a player is required to undertake an act of a sexual nature, or be subject to one.

Specific intention to upset or offend is not a necessary condition of a finding of harassment so long as the actions had that effect.13 However, given that experience suggests that many initiations are designed to offend, humiliate or degrade the new member of the team, this nuance is unlikely to be a key issue in defending a claim.

It will however be a defence to show that the individual is hypersensitive and unreasonably took offence.14 Though in reality this is very difficult to establish, a Tribunal would consider the course of conduct between the parties in deciding whether the complainant had taken offence unreasonably.

Such an argument was advanced by Miami Dolphins’ Richie Incognito earlier this year after he was discovered to have used the N-word to teammate Jonathan Martin.15 Incognito argued that although his use of the word was vulgar, it was how he and Martin and other teammates communicated and racial slurs were often thrown in all directions around the locker-room in jest.

If Incognito were able to demonstrate that Martin himself regularly used the N-word, or had used a similarly abusive equivalent term to describe Incognito previously, a Tribunal could reasonably conclude that Martin had taken offence unreasonably when the word was used back at him (though the context in which it was used would of course be key), or alternatively that his claimed offence was not genuine.

What defences do clubs have?

The employing club will have a defence to claims of discrimination or harassment if it can demonstrate that it took in advance reasonable steps to prevent the act complained of.16

This would involve first identifying whether the club took any steps at all to prevent player(s) from doing the acts in question and then considering whether there were any further steps it could have taken that were reasonably practicable.

Examples of such steps are: having a harassment/discrimination/equal opportunities policy in place; regular training for employees on those policies; making employees aware that such initiations are not tolerated; and taking steps to deal fairly and thoroughly with any discrimination/harassment complaints involving initiations or similar conduct.17

What remedies are available?

A claim for discrimination or harassment can be brought directly against the offending individual(s) in their own names.

However, section 10918 of the Act also renders the club liable if the discriminatory behaviour takes places in “the course of employment” which, in the case of initiation ceremonies, it invariably will.19

The main remedies for discrimination or harassment are: (i) an award for injury to feelings ranging from £600 to a not insignificant £30,000 for the worst behaviours20; and (ii) compensation for financial loss.

While an amount for injury to feelings is always awarded where there has been a finding of discrimination or harassment, where the discrimination or harassment results in the offended individual leaving the club or becoming ill or losing a playing bonus partly or wholly as a result of the act, he will also be able to claim for compensation.

How is the level of compensation assessed?

Unlike a claim for constructive dismissal, there is no statutory limit on the compensation that can be awarded. The compensation will be assessed in the same way as for any other tort and will seek to put the player in the financial position he would have been had the discriminatory act not taken place, i.e. it compensates him for the financial losses he has suffered arising out of the act.21

For example, a discriminated player could claim for loss of earnings for the period since they left the club up to the date on which they became employed by another club. If that player had not obtained new employment at the date of the Tribunal hearing, the Tribunal would speculate as to the date on which the player is likely to obtain new employment and award losses to that date.

In addition, if the player has obtained a new contract at another club but is being paid less than he was paid in his previous employment, the Tribunal may require the former club to make-up the shortfall.

When calculating the loss, the Tribunal will not only include the player’s basic salary, but also any benefits and bonuses they would have earned or, in the case of performance bonuses, would likely have earned.

Is there a duty to mitigate losses?

As is usual when assessing losses, the player would be expected to take reasonable steps to mitigate their losses by, for example, looking for a new club. Whether the player has mitigated his loss would be a question of fact and the Tribunal would take all the circumstances into account.22

The club may, for example, provide evidence that the player had offers of employment from other clubs but had chosen not to take them.23

However, this would not necessarily prove that the player did not mitigate his loss if the player was acting reasonably from the financial or longer term career perspective when choosing not to take up alternative employment elsewhere.

CONSTRUCTIVE UNFAIR DISMISSAL AND WRONGFUL DISMISSAL

We now turn to the second type of common claims.

Constructive unfair dismissal

A player who is subjected to an initiation ceremony may resign and argue that he has been constructively dismissed on the basis that the humiliating/offensive/degrading ceremony amounted to a fundamental breach of his employment contract and a breach of the implied mutual duty of trust and confidence.

Alternatively, a player may first raise a grievance with his club in relation to the initiation he endured and then subsequently resign because he does not feel his grievance has been properly dealt with.

In both circumstances, the player may then seek to bring a claim for constructive unfair dismissal against the club.

For a player who cannot link the initiation ceremony with one of the protected characteristics set out earlier, this may be his best legal recourse against his employer. This may seem unlikely, but it is a risk – one cannot necessarily determine the sensitivities of the player and it is this point that should be borne in mind.

There are, however, additional factors to consider in cases of constructive unfair dismissal:

Since April 2012, two years' continuous service is necessary in order to bring a constructive unfair dismissal claim. Such a claim could not therefore be brought by someone who is subject to an initiation after a transfer from another club, but could potentially be brought by a player who has been required to undergo an initiation following graduation from the club’s youth team to the first team;

A Tribunal will take the environment into account when assessing whether there has been a fundamental breach of contract or breakdown in trust and confidence. For example, whilst being forced to sing a song standing on a chair in your underpants may be deemed a fundamental breach in a stale office environment, it may not be in the context of a football club; and

There may also be a defence if the club can show that the player who perpetrated the bullying was not acting in the course of his employment, though the Tribunals have given this a wide interpretation and so even a work social function could be deemed to be sufficiently connected to employment.

Compensation for constructive unfair dismissal and wrongful dismissal

Compensation for constructive unfair dismissal claims is currently capped at £76,574 and so provides feeble recourse for higher earners.

A finding of constructive unfair dismissal may however entitle a player to successfully bring a claim for wrongful dismissal/breach of contract. If the player is on a fixed-term contract (such as a footballer), the compensation for such a claim would be his pay for the remainder of the fixed term contract. Unless the claim was before the Employment Tribunal, there would be no cap on this compensation.24

THE ROLE OF SPORTS GOVERNING BODIES

Sanctions for discrimination and harassment

The constitutions, rules and policies established by various national and international sports governing bodies will generally contain provisions prohibiting discrimination, harassment and other forms of bullying on the grounds of an individual’s protected characteristics.

These provisions are designed to protect the rights of individuals within their sport and encourage equality and diversity. They will be directly applicable to individuals, clubs and other stakeholders that are subject to a governing body’s control.

By way of example, non-discrimination is one of the fundamental principles of the Olympic Charter. The sixth principle of the Olympic Charter states that:

This general principle is reflected by the rules of various national and international sports governing bodies. Similar provisions are found, for example, in Article 3 of the FIFA Statutes,26 while national governing bodies such as the Premier League,27 England and Wales Cricket Board,28 the Rugby Football Union29 and England Hockey30 have all adopted anti-discrimination and equality policies which clubs and players are required to respect and which can be enforced against offending players and clubs where breaches occur.

Disciplinary proceedings

Where a player is discriminated against or harassed on account of one or more protected characteristics during an initiation ceremony, both the offending player and the club (if it has failed to take sufficient steps to ensure that such practices do not take place) may well find themselves subject to disciplinary proceedings before the applicable sport’s governing body. These disciplinary proceedings would be in addition to any civil proceedings brought by the player in the national court or Tribunal, as referred to above.

For example, if a club has failed to take sufficient steps to apply and ensure compliance with the Premier League’s Anti-Discrimination Policy, then, along with the offending player, it may be subject to disciplinary proceedings by the Premier League that could result in sporting sanctions being imposed against it, such as a suspension competition and/or a fine.

Impact on employment contracts

In addition, unlike most employment contracts outside professional sports, the standard Premier League and Football League contracts entitle a player to get out of what is usually a fixed-term contract on fourteen days’ written notice if the club is guilty of “serious or persistent breach” of the agreement.

An act of discrimination could be considered a serious breach, entitling the player to exercise this contractual provision and unilaterally terminate his employment contract (subject to the club’s right of appeal).

Growing importance of the issues

The eradication of all forms of discrimination and harassment based on an individual’s protected characteristics has become a key issue for sports governing bodies and stakeholders.

For example, in December 2012 the Football Association approved and introduced “English Football’s Inclusion and Anti-Discrimination Plan”.31 The Plan brought together various stakeholders within English football, including the Premier League and Football League, and established a strategy for promoting inclusion and tackling discrimination in all its forms.

A key element of this strategy was the introduction of the National Anti-Discrimination Chairman’s Panel to adjudicate cases relating to discrimination in football. At the time, FA Chairman David Bernstein said that:

Commercial and reputational damage

Earlier this year, the NBA’s LA Clippers faced an exodus of sponsors33 following racist remarks made by its owner, Donald Sterling. This incident demonstrates that sponsors are very alive to the potential damage to their own reputation and brand by being associated with a club at which discriminatory behaviour has taken place. This could be behaviour by a player during a match, remarks by the club’s owner or manager or it could be behaviour taking place during a player’s initiation (for example, the sexually explicit incidents referred to in Part 1 of this article).

Similarly, publicity from such initiations risks alienating parts of the club’s fan-base. Recent cases show that fans are sensitive to such issues. For example, there were calls from various LGBT groups to boycott the 2014 Winter Olympics as a result of Russia’s anti-homosexuality laws,34 although in the end no boycott was forthcoming.

Aside from commercial sponsors and fans, there is the risk that attaches to the commercial value of the player itself. When Arsenal signed Mesut Ozil, it was reported that online sales of the club’s replica shirts increased twelve-fold.35 Similarly, within one year of his move to Real Madrid, it was reported that sales of replica shirts bearing Cristiano Ronaldo’s name had already exceeded the £80 million transfer fee the club had paid for him the previous summer.36

Players are assets for clubs and initiations that could constitute discrimination or harassment risk losing that asset if an offending player is dismissed or an offended player decides to leave a club as a result. A period of sick leave caused by such an incident could materially damage a player’s value in the transfer market.

CONCLUSION

While initiations of some form or another are commonplace in sports clubs and can be used to engender a healthy team spirit, they pose obvious risks depending on the nature of the ritual. Those that result in harm to a player create a genuine danger that the club and individuals within it may be held liable for damages.

However, even if we assume that initiations are not intended to carry any risk of actual injury to the player, a risk is still posed to the club through the possibility of employment claims, particularly where they involve a protected characteristic under the Equality Act 2010.

Initiations that involve such a characteristic also pose the risk of disciplinary proceedings being brought against the club by its governing body if the club has failed to fulfil its obligations under the relevant rules or policies.

Clubs should also be mindful that initiations can involve criminal acts as well as civil wrongs and, at their very best, could result in bad publicity affecting both the image of the club in the public eye and relationships with its commercial partners and fans.

To guard so far as possible against any issues that may arise, a club should ensure that it has developed and issued workplace rules and regulations that ensure that:

Players and other staff are safeguarded and protected from any injury or mistreatment;

Initiations which either pose a risk of harm or amount to discrimination or harassment are expressly prohibited; and

Any complaints by or against players are fully investigated, dealt with promptly and properly, with disciplinary action taken if appropriate.

Special regard should also be had to younger players who are perhaps more vulnerable and suggestible than the more senior team members at a club.

17. Please refer to paragraphs 10.50 – 10.52 of the Employment Statutory Code of Practice published by the Equality and Human Rights Commission. These paragraphs provide examples of the reasonable steps an employer can take to prevent discrimination of harassment in the workplace.

19. In Jones v Tower Boot Co Ltd [1996] EWCA Civ 1185 the Court of Appeal emphasised that the approach to vicarious liability at common law should not be applied to the interpretation of the "course of employment" test in discrimination legislation. Instead the question as to whether conduct is within the course of employment is a question of fact for the Tribunal to determine, giving those words their everyday meaning.

21. This principle was confirmed in Ministry of Defence v Cannock [1994] I.C.R. 918. This case contains several other important points relating to the calculation of compensation for discrimination, notably the approach to be taken in the assessment of future loss of earnings and mitigation.

22. See Debique v Ministry of Defence [2011] UKEAT/0075/11 in which the Employment Appeal Tribunal, when considering whether or not a claimant had unreasonably failed to mitigate her loss, held that “The truth is that the question whether her refusal to accept the offers made to her constituted an unreasonable failure to mitigate was quintessentially a question of fact for the assessment of the Tribunal”.

23. Ibid. The Employment Appeal Tribunal upheld the Employment Tribunal’s decision not to award compensation for loss of earnings to the claimant who had sought compensation for indirect racial and sexual discrimination following her departure from the Armed Forces but had failed to mitigate her loss by unreasonably refusing an offer to transfer to a new role. See also, Wilding v British Telecommunications Plc [2002] EWCA Civ 349, in which the Court of Appeal upheld the Employment Appeal Tribunal’s decision that an employee had failed to mitigate his loss when he unreasonably refused BT's offer of re-employment following his claim for disability discrimination and unfair dismissal.

24. Compensation in an Employment Tribunal claim is capped at £25,000. Compensation in a claim before the High Court is not capped, while an arbitral panel would have the discretion to award a sum of compensation that it sees fit.

“Discrimination of any kind against a Country, private person or group of people on account of race, skin colour, ethnic, national or social origin, gender, language, religion, political opinion or any other opinion, wealth, birth or any other status, sexual orientation or any other reason is strictly prohibited and punishable by suspension or expulsion.”

27. Under Rule J.4 of the Premier League Rules, each club, player (senior and academy), manager and official must comply with the Premier League’s Anti-Discrimination Policy. The Anti-Discrimination Policy is at page 401 of the Premier League Handbook which is available at:

“The ECB reserves the right to discipline its employees and any other individuals under its direct control who practice any form of discrimination on the grounds of age, gender, disability, race, parental or marital status, pregnancy, religion or belief, or sexual orientation.”

“In pursuance of this policy the RFU and RFUW reserve the right to discipline any of its members or employees who practice any form of discrimination on the grounds of a persons age, gender, ability, race, religion, ethnic origin, creed, colour, nationality, social status or sexual orientation.”

“Appropriate disciplinary action will be taken against any EH Stakeholder who violates this Equality Policy under the employee Disciplinary Procedure or the EH Disrepute Regulations as part of the ‘Respect’ Code of Ethics and Behaviour.”

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About the Author

Andrew Peters is an Associate in the Labour and Employment team at Squire Patton Boggs, London. Andrew advises clients on the full range of employment law including both contentious and non-contentious issues.

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